European Arrest Warrant

By Libor Klimek

This book examines the European arrest warrant as a successful and effective instrument for judicial co-operation in criminal matters in the European Union. Providing comprehensive content and combining theoretical and practical aspects, it covers all of the major issues surrounding the European arrest warrant. The book analyses its genesis, main features, surrender procedure, case law, implementation and the latest developments. Instead of focusing solely on a criminal law approach, it also considers the subject from the perspective of European Union law and constitutional law.

• Language: English
• Publisher: Springer
• Release date: Sep 23, 2014
• ISBN: 9783319073385

Book preview

Part I

Introduction to European Arrest Warrant

© Springer International Publishing Switzerland 2015

Libor KlimekEuropean Arrest Warrant10.1007/978-3-319-07338-5_2

2. Genesis

Libor Klimek¹ 

(1)

Faculty of Law, Pan-European University, Bratislava, Slovak Republic

Abstract

The chapter deals with the genesis of the European arrest warrant. It is divided into seven sections and is summarised with concluding observations. Section 2.1 presents general knowledge on the European integration and its ‘spill over’ into the area of Criminal law. Following general knowledge, Sect. 2.2 specialises on Europeanisation of Criminal law as an area for the development of the European arrest warrant, namely two issues—Third Pillar of the European Union and an Area of freedom, security and justice. Section 2.3 analyses the Corpus Juris project as the first ‘unsuccessful’ concept introducing the European arrest warrant. On the contrary, Sect. 2.4 briefly introduces the mechanism of mutual recognition of judicial decisions as a ‘new wave’ towards the European arrest warrant. While Sect. 2.5 is focused on Tampere European Council conclusions of 1999 and a decision to replace extradition procedure in the European Union, Sect. 2.6 points out at impact of the 9/11 plane attacks in the United States of America on the enactment of the European arrest warrant. Consequently, Sect. 2.7 analyses negotiating and adopting the legislation on the European arrest warrant.

After the attacks on New York and Washington the enactment of the European Arrest Warrant and the surrender procedures between the Member States became a top priority for the EU’s political leaders.¹ (Michael Plachta & Wouter van Ballegooij)

As a starting point for a research analysis on the topic of the European arrest warrant (hereinafter ‘EAW’), one may begin with its genesis.

The adoption of the EAW was a political matter, as shown below, in some aspects difficult. In spite of the fact that it is a procedural instrument of the Member States of the European Union (hereinafter ‘EU’), it was introduced by the institutions at the apex of the EU, namely the European Council, the European Commission and the Council of the EU.

2.1 European Integration and Its ‘Spill Over’ into Area of Criminal Law

Before becoming a real political objective, the idea of uniting Europe was just a dream in the minds of philosophers and visionaries. For example, Hugo Grotius, imagined a peaceful ‘United States of Europe’ inspired by humanistic ideals.² Conceptions of United Europe were known since the Middle Ages, however, successful became document called ‘The Shuman Declaration’³ of 9th May 1950. Robert Schuman, the then French Foreign Minister, proposed the declaration focusing the co-operation into area of coal and steel production to West Germany. As is stated in the declaration, Franco-German production of coal and steel as a whole should be placed under a common High Authority, within the framework of an organisation open to the participation of the other countries of Europe. This proposal was enthusiastically accepted by the then German Chancellor Konrad Adenauer. The French and Germans then invited other Western European countries to join them. Their invitation was taken up by Italy, Belgium, Netherlands and Luxembourg.

Europe needed to recover from the wartime devastation. The Schuman Declaration was the birth of European integration. It made sense that political leaders focused on the iron and steel sector at first. World War II remained fresh in people’s minds. Iron and steel had been used to build weapons. Sharing iron and steel industries would be a good way of discouraging war. Moreover, coal, iron, and steel are also essential to peacetime economies as steel is used in constructing buildings, making transportation networks and vehicles and building big machines and tools used in factories.⁴

Considering the political situation of destroyed Europe, probably just few people were convicted that this event shall become the milestone for European history. As argue Craig and De Búrca, this important point in the story of modern European integration, however, should be considered in a much longer time-frame.⁵ This event aimed Europe to peaceful co-existence and co-operation which nowadays is celebrating over half-century anniversary.

Integration requires the creation of a ‘supranational organisation’.⁶ As a consequence, ‘the Six’—France, West Germany, Italy, Belgium, The Netherlands and Luxembourg—established three European Communities (hereinafter ‘EC’), namely the European Coal and Steel Community ⁷ in 1951, the European Economic Community ⁸ in 1957 and the European Atomic Energy Community ⁹ as well in 1957. Their Member States transferred some policy decisions to the bodies of all of them, the decisions of what were binding on all them. So Member States within supranational organisations transfered some sovereignty to the organisations. Furthermore, in cases of non-compliance with policy decisions or breaches of agreements, the supranational organisation had the power to impose sanctions on member governments.¹⁰

The Coal and Steel Community was the first of Western Europe’s major treaties of integration. It was the first significant step along the integration path, establishing a novel structure whose independent institutions had the power to bind its constituent Member States.¹¹ The basic theory behind this development was that war would be more difficult to purpose if European institutions empowered with substantial regulatory authority controlled the coal and steel industries.¹² Coal and steel industries were crucial for European economic recovery. They were also vital to national war-making potential. By placing them under an international authority, ‘the Six’ were abridging national sovereignty in the interests of prosperity and security.¹³ According to the functionalist theory developed by Mitrany, co-operation touching coal, iron and steel fields of the economy spreads also further fields of economy and have reached also political fields.¹⁴

EC as subjects of international relations and as well International law, naturally, needed law. Their law was based on the International law mechanism and has been developed and harmonised. As a consequence of integration, EC law has affected all national legal systems in the EC Member States. It is beyond the scope of this work to engage in an in-depth analysis of harmonisation and approximation procedures in the EC Member States, however, one could point out at affected branches of law, in particular Business law, Intellectual property law, Customer protection law, Environmental law and Criminal law.¹⁵

2.2 Europeanisation of Criminal Law: Area for the Development of the European Arrest Warrant

The founding treaties establishing the EC did not expressly anticipate the inclusion of criminal law. Similarly, the objective of economic integration while requiring a mechanism of enforcement did not foresee the use of criminal law and the concomitant police involvement as a central part of the structure.¹⁶

Before the Treaty on European Union ¹⁷ (hereinafter ‘Treaty on EU’), which entered into force in 1993, there was not much co-operation in criminal matters within the EC Member States. The focus was on the creation of the internal market. Thus, although EC law had some implications for national criminal law and despite the fact that some conventions were agreed upon within the European Political Cooperation one can not really say that Criminal law questions were formally on the agenda before the Treaty on EU.¹⁸ Prior to 1993, only some international conventions were concluded between Member States. However, this approach proved ineffective.¹⁹

On the other hand, establishing the EU and the Third Pillar structure, also known as so-called ‘Temple structure’,²⁰ affected the means for co-operation in the area of Criminal law. There was introduced a new approach to co-operation in criminal matters. For purposes of the EAW two major events should be mentioned—the Third Pillar of the EU and establishing an Area of Freedom, Security and Justice.

2.2.1 Third Pillar of the European Union

In 1993 the legal relations of the EC Member States were put on a new basis by creating the EU. The Treaty on EU legally established the EU and the EC Member States became the EU Member States.

Establishing the EU led to further integration. In addition to economic co-operation represented by the EC, there were as well new areas of co-operation—a common foreign and security policy, and co-operation in the field of justice and home affairs. However, the EU did not replace the EC. It ‘just’ supplemented new forms of co-operation.²¹ The Treaty on EU introduced a number of amendments of the founding treaties. The major innovation was the Three Pillar structure of the EU, namely the European Community pillar consisting of traditional European community law, the Common Foreign and Security Policy pillar,²² and the most important for our analysis—the Justice and Home Affairs pillar.²³ , ²⁴

As far as the Justice and Home Affairs pillar (hereinafter ‘Third Pillar’) is concerned, pursuant to the Treaty on EU, the judicial co-operation in criminal matters was mentioned as one of the areas as matters of common interest.²⁵ For the first time in the European integration, the judicial co-operation had formal intergovernmental²⁶ nature. The Third Pillar did not create new supranational law, but its existence made perfectly clear that judicial co-operation in criminal cases is a matter of common interest of all EU Member States.²⁷ They wished to have some degree of international police and judicial co-operation in criminal matters, but were not ready for the application of the full supranational machinery that operated in the Community pillar. Thus, the Third Pillar gave the Member States an institutionalised forum to discuss these matters, without subjecting themselves to supranational controls.²⁸ However, decision making under the Three Pillar was more intergovernmental and less supranational.²⁹ It should be noted that after the Treaty of Amsterdam³⁰—the first treaty amending the Treaty on EU which came into force in 1999—the Third Pillar was renamed to Police and judicial co-operation in criminal matters.³¹

Although the EU Member States did not want to break off pieces of criminal law from national sovereignty and transfer them into the Community law, they nevertheless created new legal instruments to enforce European judicial co-operation, among others, the EAW.

2.2.2 Area of Freedom, Security and Justice

As shown, the EU was established in 1993 by the Treaty on the EU. A few years later, the Treaty of Amsterdam, which constituted the first revision of the Treaty on the EU, introduced a new policy field of the EU—an ‘Area of Freedom, Security and Justice’ (hereinafter ‘AFSJ’), a major objective in the field of the Third Pillar.³² Pursuant to the Treaty on EU as amended by the Treaty of Amsterdam³³ the EU set itself the objective the establishment of an AFSJ within which European citizens enjoy a high level of safety.³⁴

The AFSJ concept was introduced to reflect the idea that the maintenance of public order, internal peace and security is shared between the Member States and the EU.³⁵ This new integration objective was strengthened by the introduction of a range of new policy objectives and by new and more appropriate legal instruments and improved judicial control. This led to the further expansion of the scope of policy-making concerning Justice and Home Affairs with dozens of new legislative acts adopted, and a considerable number of new legislative initiatives put in place. In the history of the EU integration process, no other area that previously had seen loose intergovernmental co-operation has ever made its way so quickly to the top of the EU’s political and legislative agenda.³⁶ Monar argues that future historians are likely to regard the EU’s creation of the AFSJ as one of the most significant developments in the European integration process to have taken place at the beginning of the twenty-first century.³⁷

The creation of the AFSJ has been a gradual process. It should have been established in 5 years. First of all, in 1998 was introduced the Action plan on how best to implement the provisions of the Treaty of Amsterdam on the AFSJ³⁸ (even before Treaty of Amsterdam came into force). It was sure that the full benefits of any area of freedom will never be enjoyed unless they are exercised in an area where people can feel safe and secure. There was a clear need for improving and speeding up judicial co-operation in criminal matters both among Member States and with third countries.³⁹

Consequently, as Eckes and Konstadinides pointed out, the responsibilities of the EU in protecting its citizens from crime have expanded incrementally. Security-led issues have gained particular relevance following, for example, the 9/11 attacks in the United States of America. These events ‘Europeanised’ internal security issues. This occurred through the adoption of a wide range of legislative instruments related to law enforcement, co-operation on the prevention and combating of crime, and public order management.⁴⁰ An excellent example of such initiatives is the EAW.

2.3 Corpus Juris: First ‘Unsuccessful’ Concept Introducing the European Arrest Warrant

At the end of the 1980s the outside world became aware for the first time of the huge extent of the financial damage which the EC suffered. It was due to fraud, which was frequently internationally organised, including tax evasion and customs fraud. People became sufficiently aware that this also damaged the EC’s credibility. Protection of the EC’s financial interests gradually gained greater political priority.⁴¹ In 1995 it was initiated a research project on identifying the legal framework within which the financial interests of the EC could be best protected. It was concluded that it was necessary to elaborate a criminal code for purposes of the protecting the EC’s financial interests.

As a consequence of the research work, in 1997 was introduced the publication of a Corpus Juris⁴² project. It was elaborated by experts of the Criminal law under the directions of Professor Mireille Delmas-Marty. The group came up with the project protecting EC’s financial interests as a kind of core of an independent European criminal law and law of criminal procedure.⁴³ Thus, a new European criminal code for the detection, investigation and prosecution of offences affecting the financial interest of the EC was established. It demonstrated that the different traditions of criminal procedure in Europe were close enough for a synthesis to be attempted.⁴⁴ It called for a genuine harmonisation of criminal law and procedures for dealing with fraud against the financial interests of the EC. The European Parliament suggested that the Corpus Juris could serve as a model for future developments in the area of Criminal law and its enforcement in the EU.

A revised version of the Corpus Juris⁴⁵ was published in 2000 (hereinafter ‘Corpus Juris 2000’). The Corpus Juris 2000 was radical. It cut through the tangled web of conflicting traditions in criminal justice procedure and set up a new model which embodies the most important principles from both common law and civil law traditions.⁴⁶ The Corpus Juris 2000 contains substantive⁴⁷ and procedural provisions.⁴⁸

The substantive provisions deal with, in particular, the criminal liability, sanctions and the specific offences committed in relation to EC’s financial interests, for example, money laundering and receiving, conspiracy and misappropriation of funds.

As far as the procedural provisions are concerned, a new procedural instrument was introduced—the EAW.⁴⁹ It might have been valid on the whole territory of the EU. The arrested person could have been transferred onto the territory of the EU Member State where his presence was needed, applying to the preparatory stage as well as the judgment stage.⁵⁰ However, the application of the EAW was limited in the light of the philosophy of the Corpus Juris—i.e. it could have been applicable only for purposes of EC’s financial interests, not for purposes of criminal proceedings in general.

A question which begs consideration is why the EAW did not succeed. Corpus Juris project was more widely unpopular because of a propaganda campaign against it in certain sections of the British press, including the Daily Mail, the Sun, the Daily Telegraph and Private Eye. In these journals it was claimed that the Corpus Juris had nothing to do with budgetary fraud and was really just a federalist plot, hatched in Brussels, to force the United Kingdom to abandon the common law and to accept, as a system of criminal justice, ‘the Napoleonic system’ which allegedly prevails in continental Europe—a process which would involve the repeal of Magna Charta and the abolition of habeas corpus. It was stated that Corpus Juris project had the official approval of the highest authorities in Brussels, who would rapidly force it upon an unwilling United Kingdom under powers accorded to them by the Treaty on EU.⁵¹

2.4 Mutual Recognition of Judicial Decisions in the European Union: A ‘New Wave’ Towards the European Arrest Warrant

Mutual recognition of judicial decisions, that is the process by which a decision or judgment issued by the judicial authority in one EU Member State is recognised and enforced by the judicial authorities of another, was a major change of approach within the EU in order to improve co-operation in criminal matters.

The impetus for greater co-operation in criminal matters was the belief that criminals were benefiting from the free movement of persons at the heart of the internal market. The United Kingdom Presidency of the EU proposed to make the principle of mutual recognition the cornerstone of increased co-operation in criminal justice in Europe. The idea behind the United Kingdom proposal was based on an analogy with the internal market of the EU. Following the Cassis de Dijon ⁵² case, mutual recognition paved the way for the completion of the market. Murphy argues that if the same principle could be harnessed in relation to criminal justice, then a European criminal law could be built without facing the difficult task of adopting harmonising measures.⁵³ The principle of mutual recognition was seen as an alternative to harmonisation.⁵⁴ As far as the judicial co-operation is concerned, the parallel with the internal market is apparent. Where goods are legally obtained and placed on the market in one Member State, a second check of whether they are in compliance with the conditions in another Member State is not permissible.⁵⁵

However, in the area of the Criminal law the mutual recognition has been developed again. The reason is simple—the judicial decisions in criminal matters cannot be considered as ‘products for sale’ in other countries. The European Council held a special meeting on 15th and 16th June 1998 in Cardiff (the United Kingdom). It underlined the importance of effective judicial co-operation in the fight against cross-border crime. It recognised the need to enhance the ability of national legal systems to work closely together and asked the Council of the EU to identify the scope for greater mutual recognition of decisions of each other’s courts.⁵⁶

2.5 Tampere European Council: Replacement of Extradition Procedure in the European Union

Since the 1950s, the Council of Europe has been concluding multilateral conventions with regard to all forms of international co-operation in criminal matters. Efforts over decades culminated in the completion of a network of treaties on international co-operation in criminal matters.⁵⁷ In 1957 the Council of Europe adopted the European Convention on Extradition,⁵⁸ which, apart from numerous bilateral agreements, is considered as the basic multilateral treaty in Europe. In addition, it adopted additional protocols to this Convention.⁵⁹

Conventions drafted under the aegis of the Council of Europe are open for ratification for its members and for other non-Member States that are invited to do so. However, not all Member States were a party to all the conventions.

The EU adopted instruments that would build upon the work achieved by the Council of Europe. A clear example is the area of extradition. In order to accelerate and simplify the mechanisms of the European Convention on Extradition of 1957, the EU introduced two conventions, namely the Convention on Simplified Extradition Procedure between Member States of the EU ⁶⁰ of 1995 and the Convention Relating to Extradition between the member States of the EU ⁶¹ of 1996. In spite of the fact that these instruments represented real progress at the time of their signature, however, they constitute a heavy and obsolete mechanism in view of what relations between the EU Member States. In addition, they have not been ratified by all Member States. A combination of the slow progress in implementing agreed measures, the continued growth the nature and extent of cross border crime and the expansion of the membership of the EU prompted a fresh examination of the strategy for improving co-operation in criminal matters.⁶²

The European Council held a special meeting on 15th and 16th October 1999 in Tampere (Finland) on the creation of an AFSJ in the EU. It was determined to develop the EU as the AFSJ by making full use of the possibilities offered by the Treaty of Amsterdam. The European Council sent a strong political message to reaffirm the importance of this objective. It agreed on a number of policy orientations and priorities.⁶³ As far as the EAW is concerned, according to Presidency Conclusions:

The enjoyment of freedom requires a genuine area of justice, where people can approach courts and authorities in any Member State as easily as in their own. Criminals must find no ways of exploiting differences in the judicial systems of Member States. Judgments and decisions should be respected and enforced throughout the Union, while safeguarding the basic legal certainty of people and economic operators. Better compatibility and more convergence between the legal systems of Member States must be achieved.⁶⁴

Enhanced mutual recognition of judicial decisions and judgments and the necessary approximation of legislation would facilitate co-operation between authorities and the judicial protection of individual rights. The European Council therefore endorses the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union. The principle should apply both to judgments and to other decisions of judicial authorities.⁶⁵

With respect to criminal matters, the European Council urges Member States to speedily ratify the 1995 and 1996 EU Conventions on extradition. It considers that the formal extradition procedure should be abolished among the Member States as far as persons are concerned who are fleeing from justice after having been finally sentenced, and replaced by a simple transfer of such persons, in compliance with Article 6 of the Treaty on EU. Consideration should also be given to fast track extradition procedures, without prejudice to the principle of fair trial. The European Council invites the Commission to make proposals on this matter in the light of the Schengen Implementing Agreement.⁶⁶

Two important points can be observed, namely in relation to mutual recognition and to the EAW.

First, the principle of mutual recognition has been recognised as a cornerstone of judicial co-operation in criminal matters since the European Council of Tampere. As pointed out by Apap and Carrera, the Tampere Conclusions are a milestone, in which the EU heads of state and government firmly endorsed the principle that enhanced mutual recognition of judicial decisions and judgments would facilitate co-operation between authorities and the judicial protection of individual rights.⁶⁷

Second, as far as the EAW is concerned, the Tampere conclusions did not stipulate it explicitly, however, there can be found its general idea pursuant to the wording the formal extradition procedure should be abolished among the Member States […] and replaced by a simple transfer of such persons. On the other hand, in the drive away from ‘traditional extradition’, it has been pointed out that the Tampere Conclusions contain a number of inconsistencies. As pointed out by Mackarel, the European Council urges Member States to speedily ratify the EU Conventions of 1995 and 1996 whilst also it considers that formal extradition procedure should be abolished among the Member States.⁶⁸ In addition, it should be noted that there has been progress, but Tampere conclusions were often subject to various criticisms regarding the unsatisfactory implementation process.⁶⁹

In addition, in accordance with the Tampere conclusions, in 2001 the European Commission adopted the Mutual Recognition Programme.⁷⁰ It called for an assessment of the need for modern mechanisms for the mutual recognition of final sentences involving deprivation of liberty and for extended application of the principle of the transfer of sentenced persons to cover persons resident in a Member State. As is stated in this programme, mutual recognition is designed to strengthen co-operation between Member States […]. Moreover, by ensuring that a ruling delivered in one Member State is not open to challenge in another, the mutual recognition of decisions contributes to legal certainty in the EU.⁷¹ The European Commission foresaw the possibility of the creation of a single European legal area for extradition.⁷² It wanted the EU Member States to find ways of seeking means of establishing handing-over arrangements based on recognition and immediate enforcement of arrest warrants.⁷³

2.6 9/11 Plane Attacks in the United States of America

In spite of efforts made during the 1980s and 1990s, European co-operation remained quite limited until the 9/11 attacks in the United States of America in 2001.

The plane attacks on New York and Washington moved international terrorism to the top of the European political agenda. Although the attacks were directed against the United States of America, it was perceived as an aggression against the West as a whole. Consequently, all European leaders condemned at once the terrorist atrocity and promptly gave their support to the United States of America. As pointed out by Tony Blair, the then British Prime Minister, the fight against terrorism was not a battle between the United States of America and terrorism, but between the free and democratic world and terrorism. The attacks on America in 2001 (and the Madrid and the London bombings in 2004 and 2005) showed that Europe must face a new threat. The emergence of international terrorism as a new security threat made it necessary to elaborate a new counter-terrorist strategy.⁷⁴

The EU Member States were aware of unwanted side-effect of the free movement of goods, persons, services and capital within Europe, which has been the equally free movement of crime and criminals. This produced a growth in certain forms of trans-national crime. It has also reinforced the much older and simpler phenomenon of people committing offences in country ‘A’, whose justice they seek to escape by running off to country ‘B’. The result has been a rapid increase in the number of suspects and convicted persons whose extradition is sought by one EU country from another.⁷⁵ After the 9/11 attacks, the enactment of the EAW became a top priority for the EU’s political leaders,⁷⁶ in order to speed up European extradition procedures and enhance judicial co-operation in the EU. Following the 9/11 attacks the EU adopted a range of measures—political as well as legislative.

2.7 Negotiating and Adopting the Legislation on the European Arrest Warrant

Within the Third Pillar, the European Commission gained a purely joint right of legislative initiative with the EU Member States. The European Parliament gained consultation power over every measure.

As a consequence of 9/11 attacks, on 19th September 2001 the European Commission submitted a Proposal for a Framework Decision on the European arrest warrant and the surrender procedures between Member States ⁷⁷ (in this chapter hereinafter ‘Proposal’), i.e. just 8 days after attacks. Preparing the proposal, its departments had organised a series of interviews in the EU Member States with legal practitioners, judicial officers, lawyers, academics and ministry officials responsible for extradition in almost all EU Member States. It emerged that there was no reason for distinguishing between situations in which extradition is requested at the pre-trial stage and those in which it is requested for the execution of an enforceable judgment.

The European Council met in extraordinary session on 21st September 2001 in order to analyse the international situation following the terrorist attacks in the United States of America and to impart the necessary impetus to the actions of the EU.⁷⁸ As far as enhancing police and judicial co-operation is concerned, in line with its conclusions at Tampere, the European Council signified its agreement to the introduction of the EAW. It argued that the warrant would supplant the system of extradition between the EU Member States. In addition, it was stated that extradition procedures did not reflect the level of integration and confidence between the EU Member States. Accordingly, the EAW would allow wanted persons to be handed over directly from one judicial authority to another. The European Council directed the Justice and Home Affairs Council (hereinafter ‘JHA Council’) to flesh out that agreement and to determine the relevant arrangements, as a matter of urgency and at the latest at its meeting on 6th and 7th December 2001.⁷⁹

On 29th November 2001, when the proposal was first consulted, the European Parliament proposed over 40 amendments and called for renewed consultations if the Council intended to amend the Commission proposal substantially.⁸⁰ On the same day, the European Parliament called on the Council to resort to closer co-operation, i.e. the mechanism which allows, under certain conditions, a limited number of Member States to adopt measures if not all Member States wish to take part in the event that unanimity cannot be attained or that unanimity can only be attained by substantially weakening the proposal ⁸¹ and, indeed, there was briefly talk of this possibility after the failure to reach agreement in the JHA Council.⁸² In addition to that, it should be noted that the European Parliament was involved in the process of shaping the final version of the framework decision by written questions. Its members addressed them to the European Commission regarding issues as the legal basis of the new mechanism, the possible involvement of Europol and immunities.⁸³

When the EAW was negotiated in December 2001, the strongest resistance came from Italy. The JHA Council of 6th and 7th December 2001 failed to agree on the EAW, because Italy opposed the compromise reached by 14 other EU Member States (of then 15 Member States). The Council almost reached an agreement when the process was interrupted by the veto of the then Italian Minister of Justice, who objected to the number of 32 categories of crimes in the Proposal. Although in 2000 Italy had signed a bilateral agreement with Spain on the mutual recognition of arrest warrants,⁸⁴ in December 2001 the Italian delegation was fundamentally opposed to the EAW. Silvio Berlusconi, the Prime Minister of Italy, was against the extensive list of crimes that were to fall under the Proposal, in particular the inclusion of financial fraud and corruption. The EAW was about to tail due to stout Italian opposition. Italy insisted that the list of offences covered by the proposal should be reduced from 32 to 6. This led to a very tense situation where the Belgian presidency and the French Minister of Justice, among others, threatened to proceed without Italy.⁸⁵

The Italian veto was removed after further political negotiations held in Rome (Italy) on 11th December 2001 between Guy Verhofstadt, the then Prime Minister of Belgium, a holder of the EU Presidency, and his Italian counterpart, Silvio Berlusconi. The EAW was agreed upon a week after the veto during the Laeken European Council of 14th and 15th December 2001. Thus, under pressure of the European governments the Italian veto was removed.⁸⁶

In addition, one peculiar situation can be observed. In the press release of 11th December 2001, Silvio Berlusconi stated that the Italian government would start all domestic procedures to make the Framework Decision [on the EAW…] compatible with supreme principles of the Italian constitutional legal order on fundamental rights. Interestingly, he also declared that the Italian judiciary would be adapted to European models in respect of constitutional principles. However, as pointed out by Marin, it is hard to draw legal significance from this declaration.⁸⁷

After being consulted again, on 6th February 2002 the European Parliament approved the Council’s draft without any amendment.⁸⁸ Given this decision and the withdrawal of all parliamentary scrutiny reservations, the Council of the EU finally adopted the framework decision on 13th June 2002. Thus, the legal basis for the EAW at the EU level, addressed for all EU Member States, became the Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States ⁸⁹ (hereinafter ‘Framework Decision on the EAW’). The extradition conventions of 1995 and 1996 were its immediate, albeit failed, precursors.⁹⁰ It is considered as the flagship of the EU’s immediate legal reaction to the 9/11 events,⁹¹ besides the Framework Decision 2002/475/JHA on combating terrorism⁹² and the Framework Decision 2002/465/JHA on joint investigation teams,⁹³ all adopted on the same day.

The Framework Decision on the EAW entered into force on 1st January 2004. The EAW abolished formal extradition between the EU Member States and replaced it by a system of surrender between their judicial authorities. The EU thereby moved considerably closer to its declared aspiration of becoming an AFSJ.⁹⁴

However, several governments became concerned that the EU had acted too hastily.⁹⁵ In addition, some legal scholars have argued that the introduction of the EAW was a ‘step too far too soon’.⁹⁶

2.8 Concluding Observations

The treaties founding the European Communities of 1950s did not anticipate the inclusion of criminal law. The objective of economic integration while requiring a mechanism of enforcement did not foresee the use of criminal law as a central part of the new structure.

However, establishing the EU in 1993 led to further integration. In addition to economic co-operation there were introduced new fields of co-operation, namely the common foreign and security policy of what the most important for purposes of the EAW was the co-operation in the field of justice and home affairs, later known as the police and judicial co-operation in criminal matters (so called ‘Third Pillar of the EU’). Although the EU Member States did not want to break off pieces of criminal law from national sovereignty and transfer them into the Community law, they nevertheless created new legal instruments to enforce European judicial co-operation, among others, the EAW.

The first project introducing the EAW was the Corpus Juris 2000. A new procedural instrument of the judicial co-operation in criminal matters was introduced—the EAW. It might have been valid on the whole territory of the EU. The arrested person could have been transferred onto the territory of the EU Member State where his presence was needed. However, its application was limited. It could have been applicable only for purposes of protection of EC’s financial interests. The project as a whole did not succeed. As a consequence of this failure, the EAW did not succeed too.

Later, the impetus for greater co-operation in criminal matters in the EU was the belief that criminals were benefiting from the free movement of persons. The United Kingdom Presidency of the EU proposed to make the principle of mutual recognition the cornerstone of increased co-operation in criminal justice in Europe. The idea behind the United Kingdom proposal was based on an analogy with the internal market of the EU. Following the case of Cassis de Dijon by the Court of Justice of the EU, mutual recognition paved the way for the completion of the internal market.

The principle of mutual recognition was recognised as a cornerstone of judicial co-operation in criminal matters since the European Council of Tampere. As regards the EAW, the Tampere conclusions did not stipulate it explicitly, however, there can be found its general idea.

In spite of efforts made during the 1980s and 1990s, European co-operation remained quite limited until the 9/11 attacks in the United States of America in 2001. The plane attacks on New York and Washington moved international terrorism to the top of the European political agenda. Although the attacks were directed against the United States of America, it was perceived as an aggression against the West as a whole. The EU Member States were aware of unwanted side-effect of the free movement of goods, persons, services and capital within Europe, which has been the equally free movement of crime and criminals. This produced a growth in certain forms of trans-national crime. In order to speed up European extradition procedures and enhance judicial co-operation in the EU, after the 9/11 attacks the enactment of the EAW became a top priority for the EU’s political leaders.

On 19th September 2001 the European Commission submitted the Proposal for a Framework Decision on the European arrest warrant and the surrender procedures between Member States, i.e. just 8 days after attacks. The strongest resistance to this proposal came from Italy. The Council of the EU adopted the final version of the framework decision on 13th June 2002. As a consequence the legal basis for the EAW at the EU level addressed for all EU Member States became the Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States.

References

Alegre S, Leaf M (2004) Mutual recognition in European judicial cooperation: a step too far too soon? Case study – the European arrest warrant. Eur Law J 10:200–217CrossRef

Apap J, Carrera S (2004) European arrest warrant: a good testing ground for mutual recognition in the enlarged EU? Centre for European Policy Studies, Brussels

Asp P (2002) Harmonisation and cooperation within the Third Pillar – built in risks. In: Dashwood A, Hillion C, Spencer J (eds) Cambridge yearbook of European legal studies, vol 4. Hart, Portland, pp 15–23

Asp P (2005) Mutual recognition and the development of criminal law cooperation within the EU. In: Husabø EJ, Strandbakken A (eds) Harmonization of criminal law in Europe. Intersentia, Antwerpen/Oxford, pp 23–40

Balzacq T, Carrera S (2006) The Hague Programme: the long road to freedom, security and justice. In: Balzaq T, Carrera S (eds) Security versus freedom? A challenge for Europe’s future. Ashgate, Aldershot, pp 1–34

Baratta R (2002) Overlaps between European community competence and European Union foreign policy activity. In: Cannizaro E (ed) The European Union as an actor in international relations. Kluwer Law International, The Hague, pp 51–75

Bomberg E, Peterson J, Stubb A (2008) The European Union: how does it work? 2nd edn. Oxford University Press, New York

Burgess M, Vllaard H (2006) State territoriality and European integration. Routledge, Abingdon/New York

Casale D (2008) Institutional and legal aspects of EU counter-terrorism. In: Legal aspects of combating terrorism, vol 47. Centre of Excellence, Ankara, pp 115–130

Craig P (2010) The Lisbon Treaty: law, politics, and treaty reform. Oxford University Press, New YorkCrossRef

Craig P, De Búrca G (2011) EU law: text, cases and materials, 5th edn. Oxford University Press, New York

Curtin DM, Decker IF (2011) The European Union from Maastricht to Lisbon: institutional and legal unity out of the shadows. In: Craig P, De Búrca G (eds) The evolution of EU law, 2nd edn. Oxford University Press, New York, pp 155–186

Dedman MJ (1996) The origins and development of the European Union 1945–1995: a history of European integration. Routledge, London/New York

Delmas-Marty M, van den Wyngaert C (1998) Corpus Juris. Intersentia, Antwerpen

Delmas-Marty M, Vervaele JAE (2000) Corpus Juris, vol 1. Intersentia, Antwerpen

De Witte B, Geecllioed A, Inghelram J (2008) Legal instruments, decision-making and EU finances. In: McDonnell A, Kapteyn PJG, Mortelmans K, Timmermans CWA (eds) The law of the European Union and the European communities. Kluwer Law International, Alphen aan den Rijn, pp 273–419

Eckes C, Konstadinides T (eds) (2011) Crime within the area of freedom, security and justice: a European public order. Cambridge University Press, Cambridge

Fischer P (2006) European law: historical and constitutional aspects. Eurokódex, Bratislava

Folsom RH (2005) Principles of European Union law. Thomson/West, St. Paul

Fontaine P (2006) Europe in 12 lessons. Office for Official Publications of the European Communities, Luxembourg

Guild E, Geyer F (2008) The search for EU criminal law – where is it headed? In: Guild E, Geyer F (eds) Security versus justice? Police and judicial cooperation in the European Union. Ashgate, Aldershot, pp 1–18

Hahn P (2008) The European Union. Chelsea House Publishers, New York

Hill C, Smith KE (eds) (2000) European foreign policy: key documents. Routledge, London/New York

Jánošíková M (2004) História európskej integrácie [transl. History of European integration]. In: Klučka J, Mazák J et al (eds) Základy európskeho práva [transl. Basics of European law]. Iura edition, Bratislava, pp 9–29

Kaczorowska A (2008) European Union law. Routledge-Cavendish, London/New York

Klimek L (2011) Genéza európskeho zatýkacieho rozkazu a proces jeho implementácie v Slovenskej republike [transl: Genesis of the European arrest warrant and its implementation in the Slovak Republic]. Právny obzor 94:462–483

Klimek L (2012) Joint investigation teams in the European Union. Intern Secur 4:63–67

Klimek L (2013) Europeizácia trestného práva (historický vývoj) [transl. Europeanisation of criminal law (historic development)]. In: Ivor J, Klimek L, Záhora J (eds) Trestné právo Európskej únie a jeho vplyv na právny poriadok Slovenskej republiky [transl.: Criminal law of the European Union and its impact on the legal order of the Slovak Republic]. Eurokódex, Žilina, pp 57–86

Klimek L (2014) Pozícia trestného práva v primárnom práve Európskej únie [transl.: Position of criminal law in the European Union primary law]. In: Ľalíková N et al (eds) Poňatie a charakter práva [transl.: Concept and nature of law]. Proceedings of the international conference held on 27th February 2014 in Bratislava at the Faculty of Law, Pan-European University. Slovak Academic Press, Bratislava, pp 259–265

Klip A (2012) European criminal law: an integrative approach, 2nd edn. Intersentia, Cambridge/Antwerp/Portland

Mackarel M (2007) The European arrest warrant – the early years: implementing and using the warrant. Eur J Crime Crim Law Crim Justice 15:37–65CrossRef

Majone G (2005) Dilemmas of European integration: the ambiguities & pitfalls of integration by stealth. Oxford University Press, New YorkCrossRef

Marin L (2008) The European arrest warrant in the Italian Republic. Eur Const Law Rev 4:251–273

Monar J (2005) A new ‘Area of Freedom, Security and Justice’ for the enlarged EU? The results of the European Convention. In: Henderson K (ed) Area of freedom, security and justice in the enlarged Europe. Palgrave Macmillan, Basingstoke/New York, pp 110–134

Murphy CC (2011) The European evidence warrant: mutual recognition and mutual (dis)trust? In: Eckes C, Konstadinides T (eds) Crime within the area of freedom, security and justice: a European public order. Cambridge University Press, Cambridge, pp 224–248CrossRef

Peers S (2011a) EU justice and home affairs law (non-civil). In: Craig P, De Búrca G (eds) The evolution of EU law, 2nd edn. Oxford University Press, New York, pp 269–298

Peers S (2011b) EU justice and home affairs law, 3rd edn. Oxford University Press, New York

Perron W (2005) Perspectives of the harmonization of criminal law and criminal procedure in the European Union. In: Husabø EJ, Strandbakken A (eds) Harmonization of criminal law in Europe. Intersentia, Antwerpen/Oxford, pp 5–22

Plachta M, van Ballegooij W (2005) The framework decision on the European arrest warrant and the surrender procedures between the Member States of the European Union. In: Blekxtoon R, van Ballegooij W (eds) Handbook on the European arrest warrant. T. M. C. Asser Press, The Hague, pp 13–38CrossRef

Radtke H (2005) The proposal to establish a European prosecutor. In: Husabø EJ, Strandbakken A (eds) Harmonization of criminal law in Europe. Intersentia, Antwerpen/Oxford, pp 103–118

Regan E, O’Mahony P (2002) The Third Pillar of the European Union: the emerging structure of EU Police and Judicial co-operation in criminal matters, and its impact on Irish criminal justice and civil liberties. In: O’Mahony P (ed) Criminal justice in Ireland. Institute of Public Administration, Dublin, pp 297–323

Reynolds D (2000) Europe divided and reunited. In: Blanning TCW (ed) The Oxford history of modern Europe. Oxford University Press, New York, pp 282–306

Rijken C (2006) Joint investigation teams: principles, practice, and problems. Lessons learnt from the first efforts to establish a JIT. Utrecht Law Rev 2:99–118

Rijken C, Vermeulen G (eds) (2006) Joint investigation teams in the European Union: from theory to practice. T. M. C. Asser Press, The Hague

Salmon TC, Nicoll W (eds) (1997) Building European Union: a documentary history and analysis. Manchester University Press, Manchester

Schütze R (2002) European constitutional law. Cambridge University Press, New York

Spencer JR (2000) The Corpus Juris project – has it a future? In: Dashwood A, Ward A (eds) The Cambridge yearbook of European legal studies, vol 2. Hart, Oxford/Portland/Oregon, pp 355–372

Spencer JR (2002) Introduction. In: Delmas-Marty M, Spencer JR (eds) European criminal procedures. Cambridge University Press, Cambridge, pp 1–75

Spencer JR (2005) The European arrest warrant. In: Bell J, Kilpatrick C (eds) The Cambridge yearbook of European legal studies, vol 6. Hart, Oxford/Portland, pp 201–217

Thody P (1997) An historical introduction to the European Union. Routledge, London/New YorkCrossRef

Vermeulen G (2005) Essential texts on international and European criminal law, 4th edn. Maklu, Antwerpen, pp 327–341

Wahl T (2009) The European Union as an actor in the fight against terrorism. In: Wade M, Maljević A (eds) A war on terror? The European stance on a new threat, changing laws and human rights implications. Springer, New York/Dordrecht/Heidelberg/London, pp 107–170

Wessel RA, Marin L, Matera C (2011) The external dimension of the EU’s area of freedom, security and justice. In: Eckes C, Konstadinides T (eds) Crime within the area of freedom, security and justice: a European public order. Cambridge University Press, Cambridge, pp 272–300CrossRef

Footnotes

1

Plachta and van Ballegooij (2005), p. 33.

2

Fontaine (2006), p. 5.

3

Full version of declaration see: Salmon and Nicoll (1997), pp. 44–46; or Hill and Smith (2000), pp. 13–15; In spite of the fact the Schuman Declaration is entitled by R. Schuman, it is J. Monnet who originally suggested to R. Schuman the idea of beginning with the two basic industries of coal and steel. See: Thody (1997), pp. 3–4.

4

Hahn (2008), pp. 24–26.

5

Craig and De Búrca (2011), p. 4.

6

Dedman (1996), p. 7.

7

Treaty establishing the European Coal and Steel Community, Paris (France), 18th April 1951.

8

Treaty establishing the European Economic Community, Rome (Italy), 25th March 1957.

9

Treaty establishing the European Atomic Energy Community, Rome (Italy), 25th March 1957; it should be noted that both treaties signed in Rome are known as ‘Treaties of Rome’; all three mentioned treaties are known as ‘Founding Treaties’.

10

Dedman (1996), p. 7.

11

Majone (2005), p. 5.

12

Folsom (2005), p. 3.

13

Reynolds (2000), p. 288.

14

Fischer (2006), p. 24.

15

Klimek (2013), p. 60.

16

Guild and Geyer (2008), p. 1.

17

Treaty on European Union, also known as the Treaty of Maastricht, was signed on 7th February 1992 in Maastricht (The Netherlands) and came into force on 1st November 1993; original version—Official Journal of the European Communities, C 191/1 of 29.7.1992; current version as amended by the Treaty of Lisbon—Official Journal of the European Union, C 83/13 of 30.3.2010.

18

Asp (2002), p. 16.

19

Peers (2011b), pp. 269 and 270.

20

Schütze (2002), p. 29; Curtin and Decker (2011), p. 162; Peers (2011b), p. 6; Kaczorowska (2008), p. 85; Baratta (2002), p. 64.

21

Jánošíková (2004), p. 23.

22

Articles J-J.11 of the Treaty on EU—‘Provisions on a Common Foreign and Security Policy’—Title V.

23

Articles K-K.9 of the Treaty on EU—‘Provisions on Co-operation in the Fields of Justice and Home Affairs’—Title VI.

24

The Three Pillar structure of the EU was abandoned on 1st December 2009 following the entry into force of the Treaty of Lisbon (the third revision of the Treaty on EU).

25

Article K.1 of the Treaty on EU. See: Klimek (2013), p. 69; Klimek (2014), p. 262.

26

Peers (2011a), p. 293.

27

Perron (2005), p. 6.

28

Craig (2010), pp. 332–334.

29

Craig (2010), p. 334.

30

Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts. It was signed on 2nd October 1997 in Amsterdam (The Netherlands) and came into force on 1st May 1999. Official Journal of the European Communities, C 340 of 10.11.1997.

31

Articles 29–42 of the Treaty on EU as amended by the Treaty of Amsterdam—‘Provisions on police and judicial co-operation in criminal matters’—Title VI. Official Journal of the European Communities, C 340 of 10.11.1997; similarly later in the Treaty on EU as amended by the Treaty of Nice. Official Journal of the European Union, C 321 of 29.12.2006.

32

Klimek (2011), p. 464.

33

Official Journal of the European Communities, C 340 of 10.11.1997.

34

Article 2 of the Treaty on EU as amended by the Treaty of Amsterdam. Following the entry into force of the Lisbon Treaty (Official Journal of the European Union, C 306/231 of 13.12.2006), which performed the third revision of the Treaty on the EU, the AFSJ concept has appeared as the second objective of the Treaty on the EU. Nowadays, pursuant to the Treaty on the EU as amended by the Lisbon Treaty, the EU shall offer its citizens an AFSJ without internal frontiers, in which the free movement of persons is ensured in conjunction with the taking of appropriate measures concerning external border controls, asylum, immigration and the prevention and combating of crime [Article 3(2) of the Treaty on EU as amended by the Treaty of Lisbon].

35

Wessel et al. (2011), p. 274.

36

Monar (2005), p. 301.

37

Monar (2005), p. 110.

38

Action Plan of the Council and the Commission on How Best to Implement the Provisions of the Treaty of Amsterdam on an Area of Freedom, Security and Justice. Official Journal of the European Communities, C 19/1 of 23.1.1999.

39

Para. 17 of the Action plan.

40

Eckes and Konstadinides (2011), p. 1.

41

De Witte et al. (2008), p. 399.

42

See: Delmas-Marty and van den Wyngaert (1998).

43

Radtke (2005), p. 105.

44

Spencer (2002), p. 64.

45

Delmas-Marty and Vervaele (2000).

46

Regan and O’Mahony (2002), pp. 306–307.

47

Articles 1–17 of the Corpus Juris 2000.

48

Articles 18–35 of the Corpus Juris 2000.

49

Article 25ter of the Corpus Juris 2000.

50

Article 25ter(4) of the Corpus Juris 2000.

51

Spencer (2000), p. 357.

52

Judgment of the Court of Justice of the European Communities of 20th February 1979—Case C-120/78—Cassis de Dijon (Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein). In line with this decision, a product lawfully produced and marketed in one EU Member State must be accepted in the other even if it